In this blog, I’ll be discussing the law as it relates to the standard of care required by a lawyer. I’ve previously discussed the six elements that are present while establishing a cause of action for negligence against a defendant, which will entitle you to commence a tort action in the Superior Court of Justice in Ontario, and they are as follows:
- Breach of standard of care;
- Sustaining actual damage;
- Causation;
- The existence of a duty of care;
- Proximate cause and remoteness; and
- Contributory negligence.
If you want to learn more about the six elements of a cause of action for negligence, then please click the “link” to read my blog entitled “What is the Cause of Action for a Negligence Action in Tort?”.
If you want to learn more about the standard of care required of a physician, then please click the “link” to read my blog entitled “What’s the Standard of Care Required of a Doctor?”
All of these aforementioned six elements would still be present while determining whether or not you have a cause of action against a lawyer; however, the key element that’s focused on in the legal analysis, which easily takes up the most time, and is the most contentious in a negligence action against a lawyer, is ascertaining the appropriate standard of care required of the lawyer you’re claiming negligence against. The issue essentially asks the question of whether the conduct or behaviour of the defendant lawyer departed from the standard of care – an objective standard – that an ordinarily and reasonably competent, prudent and diligent lawyer or solicitor would have exercised in the same circumstances. The application of this objective standard of the reasonable person would constitute a higher expectation of compliance to the standard, as it relates to professional persons acting within the course of their speciality, such as lawyers.
So, what is the law as it relates to the standard of care required of a lawyer? The starting point is the 1986 Supreme Court of Canada case entitled Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, 37 C.C.L.T. 117, where at pg. 167, Mr. Justice Le Dain articulated the standard of care required of a lawyer, as follows:
A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service within which he has undertaken … The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor. … A solicitor is not required to know all the law applicable to the performance of a particular legal service, in the sense that he must carry it around with him as part of his “working knowledge”, without the need of further research, but he must have sufficient knowledge of the fundamental rules or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points.
Therefore, the test relating to determining the requisite standard of care and skill required by a lawyer that you are claiming negligence against, further to the Supreme Court of Canada, is that of an ordinarily and reasonably competent, prudent and diligent lawyer.
Error of Judgment or Ignorance of a Particular Part of the Law
Furthermore, if you’re claiming negligence against a lawyer in a tort action, then it won’t be enough to merely prove that the lawyer made an error in judgment or was ignorant of some particular part of the law. In order to be successful in your tort action, so that the lawyer is liable for your compensatory damages, you’d have to prove that the lawyer’s error in judgment or ignorance of some particular part of the law was such that an ordinarily and reasonably competent, prudent and diligent lawyer, who brings reasonable care, skill and knowledge to the performance of his or her professional legal services and duties, would not have made or shown it.
So, a finding that your lawyer committed an error of judgment or was ignorant while executing a widely recognized, respectable and adopted legal approach in your best interests – the retained client – , doesn’t prima facie mean that the lawyer was negligent. If it is established that your lawyer committed an error of judgment or was ignorant of some particular part of the law, then it only follows that your lawyer may or may not be negligent, because it ultimately depends on the nature of your lawyer’s error or ignorance. Again, if the evidence established that your lawyer’s error of judgment or ignorance was one that wouldn’t have been made by the average or ordinarily and reasonably competent, prudent and diligent lawyer within the same scope of legal practice, while bringing reasonable care, skill and knowledge to the performance of that professional legal service undertaken on your behalf, which constitutes the special group that your lawyer belongs – i.e. personal injury lawyer, corporate/commercial litigation lawyer, family law lawyer, employment law lawyer, patent lawyer, medical malpractice lawyer, et cetera –, then there is a high degree of probability that your lawyer will be deemed to be negligent.
Lastly, even if your lawyer is a specialist – i.e. specializing in a specific area of law –, who like a lawyer in general practice, owes you, a retained client, a recognized duty of care in tort and in contract, your specialist lawyer, again, is only expected to demonstrate a fair, reasonable and competent degree of skill within the specific scope of his or her legal practice, or the average group of specialist lawyers that he or she belongs, but your lawyer is not required to use the highest degree of skill, because there may be lawyers who have higher education and greater advantages.
I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.
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